**_______________________________** Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

**FILED JUNE 1, 2005**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,** 

**v No. 125483**  **RUSSELL DOUGLAS TOMBS, Defendant-Appellee.** 

**BEFORE THE ENTIRE BENCH KELLY, J.**  **This case requires us to consider whether MCL 750.145c(3), which prohibits the distribution or promotion**  **of child sexually abusive material, requires that the distribution or promotion be performed with criminal**  **intent. If criminal intent is an element of the offense, we must determine also whether the prosecutor presented**  **sufficient evidence to prove that defendant possessed it. We agree with the Court of Appeals that MCL**  **750.145c(3) requires that an accused be shown to have had criminal intent to distribute or promote. We also agree**  **that the evidence presented to the trial court was insufficient to prove that intent. Therefore, we affirm**  **the decision of the Court of Appeals that reversed defendant’s conviction for distributing and promoting child**  **sexually abusive material.**

**I. F**  **ACTS AND P**  **ROCEDURAL H**  **ISTORY Defendant was a field technician for Comcast OnLine,**  **an organization that sells cable Internet access to business and residential customers. Field technicians**  **install Internet cable service and perform troubleshooting when a customer encounters difficulty in accessing the** 

**Internet. Comcast furnished defendant with a company van and a**  **laptop computer for employment-related use. Before the laptop was issued to defendant, the hard drive was**  **reformatted so that it contained only company-sanctioned software programs.**  **On August 9, 2000, a Wednesday, defendant quit his employment with Comcast. He told Christopher Williams,**  **another Comcast employee, that he would return the company's equipment and van on the weekend. Williams**  **initially told defendant that this would be acceptable, but called defendant a second time and advised him that the**  **equipment had to be returned that day.**

**2 Williams retrieved the items from defendant**  **approximately an hour after the telephone conversation. He returned the laptop to Comcast’s office and began to**  **reformat it. Although it was not required in the formatting, he ran a search for JPG files, files containing**  **pictures, "[j]ust to see what was on it." He found several and opened one. It contained adult pornography. Williams**  **looked further and came across a picture of a partially naked young girl.**  **Because of his discovery, Williams gave the computer to Carl Radcliff, a data support technician for Comcast.**  **Radcliff also ran a search for JPG files. He eventually found "a series of child pornography." Radcliff indicated**  **that the pornographic material was not in a readily available location, but was "buried inside of what's known**  **as a user profile." The laptop was later turned over to the police.**  **Detective Edward Stack of the St. Clair Shores Police Department testified that he and**  **another detective found images of child pornography on it. Sergeant Joseph Duke,**  **the supervisor of the Computer Crimes Unit of the Oakland County Sheriff's Department, counted over five hundred**  **images on the computer that he believed qualified "as either child sexually abusive material or child erotica."** 

**3 Sergeant Duke believed that the photographs had been**  **downloaded from the Internet. He indicated that the files had been difficult for him to find because they were buried**  **in subfolders seven directory levels down. He testified that "[a]s an investigator and as an examiner, it’s kind of**  **a red flag when I have to go down through 7 directory levels to get to evidence." When asked why this raises a**  **red flag, Sergeant Duke said it indicates that the data are being hidden.**  **Because of the discovery of child pornography, and because there were two minor children living in defendant's**  **home, David Joseph, a children's protective services worker with the Family Independence Agency,**  **1 interviewed defendant.**  **Joseph testified that defendant told him that, when a Comcast employee leaves employment, new programs are**  **installed in that employee’s computer. Defendant indicated that he did not think anybody would go through the files he**  **had created there. He presumed that the hard drive would simply be wiped clean before installation of new software.**  **Defendant admitted to Joseph that he had obtained the photographs "from the Internet and from sharing with**  **others." Joseph also said that it was his impression from**

**1 Family Independence Agency is now the Department of**  **Human Services.**

**4 talking with defendant that defendant had taken part in an**  **Internet club that exchanged child pornography. A jury convicted defendant of (1) distributing or**  **promoting child sexually abusive material, MCL 750.145c(3); (2)**  **possessing the material, MCL 750.145c(4); and (3) using the Internet or a computer to communicate with people for**  **the purpose of possessing the material, MCL 750.145d. 2**  **In a published opinion, the Court of Appeals reversed**  **defendant's conviction for distributing or promoting**  **child sexually abusive material under MCL 750.145c(3) and**  **affirmed his other convictions. 260 Mich App 201; 679 NW2d 77 (2003). The prosecutor appeals the reversal to this**  **Court. 470 Mich 889 (2004).**

**II. S**  **TANDARD OF R**  **EVIEW AND S**  **TATUTORY C**  **ONSTRUCTION Issues of statutory interpretation, like questions of**  **law, are reviewed de novo.** People v Koonce **, 466 Mich 515, 518; 648 NW2d 153 (2002). In interpreting a statute, our**  **goal is to ascertain and give effect to the Legislature's intent.**  People v Morey **, 461 Mich 325, 330; 603 NW2d 250 (1999). Where the language of the statute is unambiguous,** 

**2 On appeal to us, defendant did not challenge his**  **convictions under MCL 750.145c(4) or MCL 750.145d. Therefore, this Court takes no position on whether the**  **facts are sufficient to support convictions under those provisions.** 

**5 the Court presumes that the Legislature intended the**  **meaning expressed.** Id. **Accordingly, to determine whether a statute imposes strict liability or requires proof of a guilty mind, the**  **Court first searches for an explicit expression of intent in the statute itself. See**  People v Quinn **, 440 Mich 178, 185; 487 NW2d 194 (1992).**  **Normally, criminal intent is an element of a crime.** People v Rice **, 161 Mich 657, 664; 126 NW2d 981 (1910). Statutes that create strict liability for all their**  **elements are not favored.** Quinn **, 440 Mich at 187. Hence, we tend to find that the Legislature wanted criminal intent**  **to be an element of a criminal offense, even if it was left unstated.** 

**III. C**  **RIMINAL I**  **NTENT IS AN E**  **LEMENT OF MCL 750.145**  **C (3)**  **The statutory provision under consideration, MCL 750.145c(3), reads in relevant part:**  **A person who distributes or promotes, or finances the distribution or promotion of, or**  **receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to**  **distribute, receive, finance, or promote any child sexually abusive material or child sexually**  **abusive activity is guilty of a felony, punishable by imprisonment for not more than 7**  **years, or a fine of not more than $50,000.00, or both, if that person knows, has reason to know,**  **or should reasonably be expected to know that the child is a child or that the child sexually**  **abusive material includes a child or that the depiction constituting the child sexually abusive** 

**6 material appears to include a child, or that**  **person has not taken reasonable precautions to determine the age of the child. This subsection**  **does not apply to the persons described in section 7 of 1984 PA 343, MCL 752.367.**  **The question presented is whether, to be convicted under the statute, a defendant must possess the criminal intent**  **to distribute or promote child pornography. Considering solely the statute’s words, it is apparent**  **that criminal intent,** mens rea **, is not explicitly required. The only specific knowledge requirement is that the**  **defendant knew that the sexually abusive material included or appeared to include a child.** 

**IV. U**  **NITED S**  **TATES S**  **UPREME C**  **OURT P**  **RECEDENT The United States Supreme Court has addressed the**  **issue whether a criminal intent element should be read into a statute where it does not appear.**  Morissette v United
States **, 342 US 246; 72 S Ct 240; 96 L Ed 288 (1952). In** Morissette **, the defendant took spent shell casings from a government bombing range and sold them for salvage. The**  **defendant was convicted of converting government property despite evidence suggesting that he had no criminal intent**  **to steal anything and thought the property abandoned. The trial court instructed the jury that a lack of criminal**  **intent was not a defense to the charge.** Id. **at 247-249. In reviewing the case, the**  Morissette **Court began with the proposition that criminal offenses that do not require**  **7 a criminal intent are disfavored. Liability without**  **criminal intent will not be found in the absence of an express or implied indication of congressional intent to**  **dispense with the criminal intent element.** Id **. at 250-263.** Morissette **stated: The contention that an injury can amount to**  **a crime only when inflicted by intention is no provincial or transient notion. It is as**  **universal and persistent in mature systems of law as belief in freedom of the human will and a**  **consequent ability and duty of the normal individual to choose between good and evil. A**  **relation between some mental element and punishment for a harmful act is almost as**  **instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the**  **rational basis for a tardy and unfinished substitution of deterrence and reformation in**  **place of retaliation and vengeance as the motivation for public prosecution. Unqualified**  **acceptance of this doctrine by English common law in the Eighteenth Century was indicated by**  **Blackstone's sweeping statement that to constitute any crime there must first be a**  **"vicious will." Common-law commentators of the Nineteenth Century early pronounced the same**  **principle . . . . Crime, as a compound concept, generally**  **constituted only from concurrence of an evil**   ** meaning mind with an evil-doing hand, was** **congenial to an intense individualism and took deep and early root in American soil. As the**  **states codified the common law of crimes, even if their enactments were silent on the subject,**  **their courts assumed that th e omission did not**  **signify disapproval of the principle but merely recognized that intent was so inherent in the**  **idea of the offense that it required no statutory affirmation. Courts, with little hesitation or**  **division, found an implication of the requirement as to offenses that were taken over from the**  **common law. The unanimity with which they have**

**8 adhered to the central thought that wrongdoing**  **must be conscious to be criminal is emphasized by the variety, disparity and confusion of their**  **definitions of the requisite but elusive mental element. However, courts of various**  **jurisdictions, and for the purposes of different offenses, have devised working formulae, if not**  **scientific ones, for the instruction of juries around such terms as "felonious intent,"**  **"criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "wilfulness,"** 

**"** scienter **," to denote guilty knowledge, or "** mens rea **," to signify an evil purpose or mental culpability. By use or combination of these**  **various tokens, they have sought to protect those who were not blameworthy in mind from conviction**  **of infamous common-law crimes. [** Id. **at 250-252.] The Court then considered the history and purpose of the**  **federal statute at issue and determined that there was no indication that Congress wanted criminal intent eliminated**  **from the offense.** Id **at 265-269. The**  Morissette **Court noted the longstanding presumption that all crimes require criminal intent. It**  **held that Congress’s failure to include a criminal intent element did not signal a desire to preclude the need to**  **prove criminal intent. Rather, the omission of any mention of criminal intent was not to be construed as eliminating**  **the element from the crime.** Id **. at 272-273. Since the**  Morissette **decision, the United States Supreme Court has reiterated that offenses not requiring**  **criminal intent are disfavored. The Court will infer the presence of the element unless a statute contains an** 

**9 express or implied indication that the legislative body**  **wanted to dispense with it. Moreover, the Court has expressly held that the presumption in favor of a criminal**  **intent or** mens rea **requirement applies to each element of a statutory crime.** 

**In** Staples v United States **, 3**  **the Court interpreted a federal statute that makes it a crime to possess an**  **unregistered weapon capable of automatic firing. The Court noted that silence with respect to criminal intent does**  **not, by itself, “necessarily suggest that Congress intended to dispense with a conventional**  mens rea **element, which would require that the defendant know the facts that make**  **his conduct illegal.”** Staples, **511 US at 605. The Court observed that the existence of**  mens rea **“‘is the rule of, rather than the exception to, the principles**  **of Anglo-American criminal jurisprudence.’”** Id., **quoting** United States v United States Gypsum Co **, 438 US 422, 436; 98 S Ct 2864; 57 L Ed 2d 854 (1978). It held that silence**  **did not suggest that Congress intended to eliminate a** mens

rea **requirement from the National Firearms Act.** Staples **said: On the contrary, we must construe the**  **statute in light of the background rules of the**

**3 511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994).** 

**10 common law, in which the requirement of some**  mens rea **for a crime is firmly embedded. . . . There can be no doubt that this established**  **concept has influenced our interpretation of criminal statutes. Indeed, we have noted that**  **the common-law rule requiring** mens rea **has been “followed in regard to statutory crimes even**  **where the statutory definition did not in terms include it.” Relying on the strength of the**  **traditional rule, we have stated that offenses that require no**  mens rea **generally are disfavored, and have suggested that some**  **indication of congressional intent, express or implied, is required to dispense with**  mens rea **as an element of a crime. [**  Staples **, 511 US at 605 -**  **606 (citations omitted).]**

**In** United States v X-Citement Video, Inc **, 4**  **the United States Supreme Court applied the**  mens rea **rule to a federal statute prohibiting child pornography. The statute made it**  **illegal to “knowingly transport[] or ship[]” or “knowingly receive[] or distribute[]” any visual depiction involving**  **the use of a minor engaging in sexually explicit conduct. 18 USC 2252. The Court was required to determine whether**  **the term “knowingly” as used in the section also modified the phrase “use of a minor.” The Court undertook to**  **determine whether the defendant must knowingly transport the material and must know that it depicted a minor engaged**  **in sexually explicit conduct. The**  X-Citement Video **Court presumed that** mens rea **must be shown to obtain a conviction, there being no clear** 

**4 513 US 64; 115 S Ct 464; 130 L Ed 2d 372 (1994).** 

**11 congressional intent that strict liability should be**  **imposed. It held that Congress must have intended that an accused transported the material knowingly and had**  **knowledge of its nature to be guilty of the crime.** XCitement Video **, 513 US at 78. The Court noted that this reading was necessary because "some form of scienter is to**  **be implied in a criminal statute even if not expressed" and because "a statute is to be construed where fairly possible**  **so as to avoid substantial constitutional questions.”** Id. **at 69.**

**V. A**  **PPLICATION OF P**  **RECEDENT TO R**  **ESOLVE THE C**  **RIMINAL I**  **NTENT Q**  **UESTION We apply this Supreme Court precedent to the case**  **before us. No** mens rea **with respect to distribution or promotion is explicitly required in MCL 750.145c(3).**  **Absent some clear indication that the Legislature intended to dispense with the requirement, we presume that silence**  **suggests the Legislature’s intent not to eliminate** mens rea **in MCL 750.145c(3). The Court of Appeals correctly reached this**  **conclusion. The most applicable dictionary definition of "distribute" implies putting items in the hands of others**  **as a knowing and intentional act. 5**  **Likewise, the terms**

**5 “Distribute: to divide and give out in shares;**  **allot. To pass out or deliver: to distribute pamphlets.” (continued...)**  **12 "promote" and "finance," and the phrase "receives for the**  **purpose of distributing or promoting" contemplate knowing, intentional conduct on the part of the accused.**  **The use of these active verbs supports the presumption that the Legislature intended that**  **the prosecution prove that an accused performed the prohibited act with criminal**  **intent. If we held otherwise, not only would it be illogical, we would create a questionable scheme of**  **punishment: One who, with criminal intent, possessed child sexually abusive material would be subject to a lesser**  **punishment than someone who, without criminal intent, passed along such material to others.**  **6 The Court of Appeals holding that the prosecution must**  **prove criminal intent to distribute or promote fully implements the goal of the legislative scheme. It also**  **(...continued)** The Random House College Dictionary **(2001) "[T]o give out or deliver especially to members of a group <distribute**  **newspapers>."** Merriam-Webster OnLine Dictionary **<http://www.m-w.com> (accessed April 15, 2005). "[T]o divide (something) among several or many people, or to**  **spread or scatter (something) over an area."** Cambridge Dictionary of American English **(Online version) <http://www.dictionary.cambridge.org> (accessed April 15,**  **2005).**

**6 The maximum penalty for violating MCL 750.145c(3),**  **distributing or promoting child sexually abusive material, is seven years in prison and a fine of $50,000. The**  **maximum penalty for possessing child sexually abusive material, MCL 750.145c(4), is four years in prison and a**  **$10,000 fine. When defendant was convicted, MCL 750.145c(4) provided for imprisonment of one year.** 

**13 avoids substantial constitutional questions. The fact,**  **standing alone, that the Legislature did not affix the term "knowingly" to the distribution or promotion element does**  **not mean that the Legislature intended a strict liability standard.**  **As the United States Supreme Court explained in** XCitement Video **, 7**  **if there were no** mens rea **element respecting the distribution of the material, the statute**  **could punish otherwise innocent conduct. For instance, a person might accidentally attach the wrong file to an e**  **** **mail sent to another. The person might intend to send an innocent photograph, but accidentally send a pornographic**  **photograph of a child instead. Also, the person might not intend that the recipient recognize or even see the**  **material that he transferred. If the statute contained no**  mens rea **element, a person lacking any criminal intent could be convicted and**  **sentenced to seven years in prison and a fine of $50,000. Or, as in the present case, he could be found criminally**  **liable for returning a laptop owned by his employer, intending only that the offending material be destroyed.**  **8**

**7 513 US at 69.** 

**8 The dissent claims that evidence of intent is found**  **in the fact that defendant returned the laptop containing (continued...)**  **14 If this were the law, Comcast employees who**  **transferred defendant’s JPG computer files among themselves and ultimately to the police, knowing what was in them,**  **would have violated MCL 750.145c(3). It would be immaterial that they had no criminal intent. Such a**  **reading of the statute would frustrate its purpose. 9**  **For all of the reasons given, we conclude that the Legislature intended that criminal intent to distribute be**  **an element of MCL 750.145c(3).**

**(...continued) the offending material. There is evidence that defendant**  **intended to distribute the laptop to Comcast, but there is no**  evidence **of a criminal intent on his part to distribute child sexually abusive material. In fact, all the evidence**  **points to the contrary conclusion, that defendant did not distribute the material with a criminal intent. He**  **returned the laptop to his former employer as required and with the expectation that his former employer would not**  **search for and find the child sexually abusive material. This is further supported by the fact that the material was**  **hidden in subfolders seven directory levels down.**

**9 The dissent insists that these Comcast employees**  **could be convicted under our reading of MCL 750.145c(3),** post **at 5 n 6. It appears to miss the distinction between intent to commit an act, such as returning another's**  **personal property, and intent to commit a crime, a "guilty mind.” The Comcast employees intended to report a**  **suspected crime. They did not intend to illegally**  **distribute child sexually abusive material. The dissent states that, in other statutes, the**  **Legislature has taken steps to prevent the prosecution of people who lack criminal intent. But it fails to show how**  **those statutes are relevant to the issue before us, which is whether MCL 750.145c(3) includes criminal intent as an**  **element.**

**15 VI.**  **T HE**  **E VIDENCE IS**  **I NSUFFICIENT TO**  **S UPPORT A**  **C ONVICTION FOR**  **D ISTRIBUTING**  **C HILD**  **S EXUALLY**  **A BUSIVE**  **M ATERIAL**  **The next question is whether the prosecution proved**  **that defendant had the criminal intent to distribute or promote child sexually abusive material. Due process**  **requires proof of intent beyond a reasonable doubt.** People v Petrella **, 424 Mich 221, 268; 380 NW2d 11 (1985). When determining if sufficient evidence was presented to sustain**  **a conviction, a court must view the evidence in a light most favorable to the prosecution. It must determine**  **whether any rational trier of fact could have found that the essential elements of the crime were proven as**  **required.** People v Wolfe **, 440 Mich 508, 515; 489 NW2d 748 (1992).** 

**A. R**  **ETURN OF THE L**  **APTOP TO C**  **OMCAST Although defendant intended to distribute the laptop**  **containing child sexually abusive material to his former**  **employer, no evidence suggests that he distributed the material with a criminal intent. There was no evidence**  **that defendant made anyone at Comcast aware, or attempted to make anyone aware, of the presence of the material. To**  **the contrary, there is evidence that defendant neither intended nor expected anyone at Comcast to discover or view**  **the material.**

**16 Comcast witnesses acknowledged that the computer hard**  **drive could be erased and reformatted without any of its files being reviewed. Mr. Williams admitted that this was**  **the practice at Comcast and that defendant himself may have previously performed such erasures on returned computers.**  **Williams admitted that he looked through defendant’s files because "I just wanted to see what was on there," not**  **because it was necessary. Williams further testified that he did not tell defendant when he arranged to pick up the**  **computer that he intended to look at any of his files. Another witness testified that the practice at Comcast was**  **simply to wipe the hard drives of all information and reformat them.**  **From the testimony, one could reasonably conclude that defendant anticipated that no one at Comcast would review**  **his files. His statement to FIA investigators was that he thought the entire hard drive would be merely erased and**  **reformatted. Viewed most favorably to the prosecution, the record contains nothing from which to reasonably infer that**  **defendant intentionally left the material on the laptop for Comcast's employees to discover.**  **The dissent questions the relevancy of the fact that defendant did not intend anybody to discover or view the**  **material. As explained above, defendant could be convicted**

**17 of distributing child sexually abusive material only if he**  **distributed the material with a criminal intent. Obviously, if defendant distributed the material not**  **intending anybody to discover or view it, he did not distribute it with a criminal intent.**  **Defendant returned the computer, as he was required to do, to individuals who possibly knew how to find the**  **information. This does not change the fact that defendant concealed the images. Nor does it change the fact that, on**  **the basis of past company practice, defendant legitimately believed that those individuals would not search the**  **computer for picture files. That someone had the ability and desire to search for the material defendant**  **purposefully concealed does not affect the analysis of defendant's state of mind. The actions of a third party**  **could not create a criminal intent in the mind of defendant.**  **In addition to defendant’s statement to the FIA, substantiation for the inference that there was no**  mens rea **is found in the testimony of prosecution witness Radcliffe. He said that the photos were buried deep in a user profile,**  **not in a readily available location. Likewise, Sergeant Duke testified that, in his opinion, the location, seven** 

**18 directory levels down, indicated that defendant intended to**  **keep the material secret. Hence, insufficient evidence existed from which the**  **jury could draw an inference beyond a reasonable doubt that, when returning the laptop, defendant distributed**  **child sexually abusive material with criminal intent. We avoid the dissent’s error of conflating the criminal intent**  **to distribute child sexually abusive material with the simple intent to return the laptop.** 

**B. D**  **EFENDANT ’**  **S I**  **NTERNET A**  **CTIVITY The prosecutor made the alternative argument that**  **defendant distributed child sexually abusive material over the Internet. However, the jury acquitted him of that**  **crime. It specifically found that defendant did not use a computer or the Internet to communicate with another person**  **to distribute or promote child sexually abusive material. MCL 750.145d. It found him guilty only of using a computer**  **or the Internet to communicate with another person in order to possess child sexually abusive material.**  Id **. We apply the same reasoning regarding this argument as**  **did the Court of Appeals: Given the prosecutor's theory that defendant**  **distributed child sexually abusive material by returning to Comcast the computer containing such**  **material and the jury's verdict of acquittal on the charge of using a computer to distribute or**  **promote such material, we conclude that**

**19 defendant's conviction solely rests upon the**  **theory primarily advanced by the prosecution at trial: that defendant distributed child sexually**  **abusive material by returning to Comcast a computer that contained such material.**  **Accordingly, our review of the sufficiency of the evidence is limited to the theory that resulted**  **in defendant's conviction. [260 Mich App at 208.] [Emphasis added.]**  **In his concurrence, Chief Justice Taylor concludes that there was sufficient evidence for the jury to convict**  **defendant of distributing child sexually abusive material. The basis for the conviction could have been that he shared**  **such material with others on the Internet. The concurrence acknowledges that the jury specifically acquitted defendant**  **of using a computer to distribute such material, but it observes that jury verdicts need not be consistent.**  **We reason that, although inconsistent jury verdicts may be legally permissible, it does not follow that we**  **should find verdicts inconsistent when it is possible to find them consistent. See**  Lagalo v Allied Corp, **457 Mich 278, 282; 577 NW2d 462 (1998) (“‘[i]f there is an**  **interpretation of the evidence that provides a logical explanation for the findings of the jury, the verdict is**  **not inconsistent.’”) (Citation omitted.) There is no disagreement that, here, the jury**  **specifically acquitted defendant of using a computer to distribute child sexually abusive material, and it** 

**20 convicted him of distributing such material. It could have**  **found him guilty of distributing the material in one of two ways: (a) finding that he shared the material with others**  **on the Internet, or (b) finding that he distributed it by returning the computer to Comcast. The former would be**  **inconsistent with the jury's verdict concerning the “use of a computer to distribute child sexually abusive material”**  **charge; the latter would not be. Because we presume that the verdicts are consistent, we conclude that the jury**  **convicted defendant of distributing the material by returning the computer to Comcast.**  **10**

**VII. T**  **HERE IS I**  **NSUFFICIENT E**  **VIDENCE TO S**  **UPPORT A C**  **ONVICTION FOR P**  **ROMOTING C**  **HILD S**  **EXUALLY A**  **BUSIVE M**  **ATERIAL It is without dispute that defendant possessed child**  **sexually abusive material that he had obtained over the Internet. The prosecution contends that possessing the**  **material is the legal equivalent of promoting it for purposes of MCL 750.145c(3).**  **MCL 750.145c(3) reads:**

**10 The concurring justice mistakes defense of our**  **analysis for a criticism of his unanimity argument. Rather than criticize the argument, we simply find that there is**  **no reason to consider the unanimity issue. The jury specifically acquitted defendant of using a computer or the**  **Internet to distribute child sexually abusive material. This conclusive determination precludes reliance on the**  **rationale that the conviction for distribution was based on defendant’s Internet activity. We need go no further.** 

**21 A person who**  distributes or promotes **, or finances the distribution or promotion of, or**  **receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to**  **distribute, receive, finance, or promote any child sexually abusive material or child sexually**  **abusive activity is guilty of a felony, punishable by imprisonment for not more than 7**  **years, or a fine of not more than $50,000.00, or both . . . . [Emphasis added.]**  **MCL 750.145c(4) reads: A person who knowingly**  possesses **any child sexually abusive material is guilty of a felony**  **punishable by imprisonment for not more than 4 years or a fine of not more than $10,000.00, or**  **both, [11]**  **if that person knows, has reason to know, or should reasonably be expected to know the**  **child is a child or that the child sexually abusive material includes a child or that the**  **depiction constituting the child sexually abusive material appears to include a child, or that**  **person has not taken reasonable precautions to determine the age of the child. [Emphasis**  **added.] Possession is not the same**  **as promotion. The prosecutor blurs the two, asserting that by obtaining the**  **material from the Internet, defendant promoted it. To accept that argument, this Court would have to ignore the**  **express language of the Legislature that created a graduated scheme of offenses and punishments regarding**  **child sexually abusive material.**

**11 MCL 740.145c(4) was amended after defendant's trial.**  **Formerly, a violation of this provision was punishable as a misdemeanor.** 

**22 The Legislature expressly separated the crimes of**  **production of child sexually abusive material, 12**  **distribution or promotion of the material, and simple possession. It would not have made the distinction had it**  **intended to equate mere possession with promotion. If the Legislature had wanted end-users of the**  **material to be guilty of promoting such material merely because they possess it, MCL 750.145c(4) would have**  **included promotion. Alternatively, the Legislature would have equated possession with both distribution and**  **promotion in MCL 750.145c(3) instead of creating a separate provision for possession in § 145c(4). The statute on its**  **face makes the mere possession of child sexually abusive material a different and less severe offense than either**  **distribution or promotion of the material.**

**VIII. C**  **ONCLUSION We hold that, to convict a defendant of distribution**  **or promotion under MCL 750.145c(3), the prosecution must**  **prove that (1) the defendant distributed or promoted child sexually abusive material, (2) the defendant knew the**  **material to be child sexually abusive material at the time of distribution or promotion, and (3) the defendant**  **distributed or promoted the material with criminal intent.**

**12 MCL 750.145c(2).** 

**23 Also, we hold that the mere obtaining and possessing of**  **child sexually abusive material using the Internet does not constitute a violation of MCL 750.145c(3).**  **There was insufficient evidence in this case for a jury to conclude beyond a reasonable doubt that defendant**  **distributed or promoted child sexually abusive material with criminal intent. Therefore, we affirm the Court of**  **Appeals decision reversing defendant’s conviction of distribution or promotion under MCL 750.145c(3).**  **Marilyn Kelly Michael F. Cavanagh**  **Stephen J. Markman**

**24 _______________________________**  **v S T A T E O F M I C H I G A N** 
**SUPREME COURT**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,** 

**No. 125483**  **RUSSELL DOUGLAS TOMBS, Defendant-Appellee.** 

**TAYLOR, C.J. (** concurring **). I concur in the result of Justice Kelly’s opinion and**  **with her analysis in all but part VI(B). I write separately to explain my own reasons for reaching the**  **conclusion that defendant’s conviction for “distributing or promoting” child sexually abusive material was properly**  **reversed by the Court of Appeals. I agree with Justice Kelly regarding the intent required to establish a**  **violation of this statute. In addition, I believe such an intent is required because without it, otherwise innocent**  **conduct could be criminalized. As a general rule there can be no crime without a criminal intent.**  **1** People v Roby **, 52**

**1 Strict liability crimes present a very limited**  **exception to this rule, but I do not believe this crime is in that category.** **Mich 577, 579; 18 NW 365 (1884) (Cooley, C.J.). The United States Supreme Court has spoken extensively on this,**  **holding that when a criminal statute is totally silent about state of mind (as is often the case), courts**  **nonetheless assume that Congress intended to require some kind of guilty knowledge with respect to certain elements**  **of the crime. See** Liparota v United States **, 471 US 419, 426; 105 S Ct 2084; 85 L Ed 2d 434 (1985) (courts should**  **not read criminal statutes as requiring no** mens rea **);** Morissette v United States **, 342 US 246, 255-256, 263; 72 S Ct 240; 96 L Ed 288 (1952).**  **Under Justice Corrigan’s interpretation, the only element requiring criminal intent is that the material is**  **child pornography, because this is the element that criminalizes otherwise innocent conduct. However, a person**  **may be aware of the existence of such material without taking the criminal step of distributing it or promoting**  **it. Such a person would be engaging only in innocent conduct until the element of distributing or promoting is**  **met. What Justice Corrigan seems to be arguing here is that defendant possessed the material, and then went one**  **step further and handed the computer to Comcast employees, and thus he had not engaged in only innocent conduct before**  **distributing. However, possession is not an element of**

2**distributing or promoting, and we must look at the elements of the charged crime, not the facts of the case before us,**  **in determining the required intent. The Court of Appeals correctly applied this law in its analysis, finding that**  **defendant did not “distribute” the material when he returned the computer to Comcast because he did not**  **“intend[] for anyone to see or receive child sexually abusive material.” 260 Mich App 201, 217; 679 NW2d 77**  **(2003). Thus, I agree with Justice Kelly’s conclusion that**  **there was insufficient evidence to prove defendant had this intent when he returned the computer to Comcast.**  Ante **at 20.**  **I also agree with her analysis and conclusion that there was insufficient evidence supporting the prosecutor’s**  **second theory, i.e., that defendant promoted child sexually abusive material by merely acquiring or possessing it.**  **Justice Kelly properly concludes that acquisition or possession of the material is not legally equivalent to**  **promoting it for the purposes of MCL 750.145c(3).** Ante **at 22.**  **Finally, while I agree with her conclusion that defendant’s conviction for distributing or promoting child**  **sexually abusive material is not supported by the**  **prosecutor’s third theory—that defendant committed the**

3**crime by uploading or sharing child sexually abusive material through the Internet—I do not find her analysis of**  **this issue persuasive. Although the jury found defendant not guilty of using a computer or the Internet to**  **distribute or promote child sexually abusive material, the elements of the more general distribution crime are also**  **satisfied by defendant’s alleged acts of sharing the material, and this is sufficient to convict. When a**  **defendant is convicted under a multicount indictment, we must consider whether the elements of each charge have been** 

**met.** People v Vaughn **, 409 Mich 463, 465; 295 NW2d 354 (1980). Each count is regarded as if it were a separate**  **indictment, and jury verdicts rendered on the several counts need not be consistent.**  Id **. In contrast to Justice Kelly’s analysis, I believe the**  **evidence supporting this theory is sufficient (but barely) when the evidence presented at trial, and the reasonable**  **inferences taken from it, is viewed in the light most favorable to the prosecution.**  **2 See**  People v Tanner **, 469 Mich 437, 444 n 6; 671 NW2d 728 (2003).** 

**2 At trial, Mr. David Joseph, the children’s protective**  **services worker, testified that defendant admitted “sharing” child pornography through the Internet. When**  **pressed as to what defendant meant by “sharing,” Mr. Joseph (continued...)** 

4**However, the fact is that the prosecutor presented to the jury distinct factual situations, each of which could**  **have been seen by individual jurors as satisfying the** actus

reus **of the single charge. 3**  **This is permissible, but only if the jurors are instructed that they all must unanimously**  **agree that defendant committed at least one of the criminal acts. That unanimity requirement, not having been**  **presented to the jury, is fatal to this conviction. The Michigan Constitution requires the jury’s verdict to be**  **unanimous to comply with minimal due process. Const 1963, art 1, § 14; see**  People v Cooks **, 446 Mich 503, 510-511; 521 NW2d 275 (1994);**  Schad v Arizona **, 501 US 624, 649-652; 111 S Ct 2491; 115 L Ed 2d 555 (1991) (Scalia, J., concurring).**  **Unanimity is not a difficulty if there is a single charged criminal act that could have been committed in various**  **ways. In such a case, jurors need not agree on the mode of commission. Thus, submitting a charge of murder in which**  **the defendant either killed with premeditation or committed the murder during the course of a felony does not violate** 

**(...continued) first admitted he was not an expert, then stated that his**  **“impression” was that defendant was part of a club. He did not testify that defendant “stated” he was part of a club.** 

**3 That is, although defendant was charged only once,**  **the alleged acts could have resulted in three separate charges.** 

5**due process because the jury still determines what crime was committed as a result of the single, unlawful act.**  **Likewise, “when a statute lists alternative means of committing an offense, which means in and of themselves do**  **not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate**  **theories.”** People v Gadomski **, 232 Mich App 24, 31; 592 NW2d 75 (1998). For example, in**  Gadomski **, an instruction on unanimity was not necessary when the jury was required**  **to find that the defendant engaged in a specific act of sexual penetration alleged by the prosecution and that this**  **act was accompanied by one of three alternative aggravating circumstances: (1) that the act occurred during the**  **commission of a home invasion, see MCL 750.520b(1)(c); (2) that it involved aiding and abetting and force or coercion,**  **see MCL 750.520b(1)(d)(ii); or (3) that it caused personal injury to the victim and involved force or coercion, MCL**  **750.520b(1)(f).** Id **. at 29-31. But if discrete, specific acts were committed, each of which is claimed to satisfy**  **all the elements of the charged crime, the trial court is required to instruct the jury that it must unanimously**  **agree on the same specific act.** Cooks, supra **at 530. Here, at least two of the alleged criminal acts**  **required materially different evidence. The act of**

6**returning the computer to Comcast involved a separate and different set of facts from those concerning defendant’s**  **alleged involvement in facilitating the exchange of Internet child pornography. To have a valid conviction,**  **the jurors had to be instructed that they all had to agree on the incident in which all elements of the crime had been**  **established. This was not done, and this deprived defendant of due process.**  **4** Schad, supra **at 650. Complicating this, however, is the fact that the error was**  **unpreserved because defendant did not request such an instruction and did not object to the instructions as**  **given. MCL 768.29 provides that “[t]he failure of the court**  **to instruct on any point of law shall not be ground for** 

**4 The lead opinion in responding to this position**  **misunderstands it. My position is that all the jurors must agree on the same incident that establishes the crime. You**  **cannot, to use this case as the example, have some jurors using the facts of one incident (the return of the**  **computer) and others using an other incident (the alleged**  **distribution of pornography over the Internet) to establish a crime of distribution. To prevent this, an instruction**  **telling the jurors that they must agree on not only the bottom line but also on which incident establishes the**  **crime was necessary. This was not done here and thus error requiring reversal occurred. My argument is not predicated**  **on the consistency of the several verdicts themselves. Indeed, the verdicts could be consistent and the unanimity**  **requirement still be violated. Nothing in the lead opinion responds to this simple point.** 

7**setting aside the verdict of the jury unless such an instruction is requested by the accused,” but this statute**  **can only control if enforcing it would not run afoul of the Constitution. In an effort to make such incompatibilities**  **of statutes and the Constitution as infrequent as possible, a canon of construction has developed that constrains us to**  **construe the statute at issue, if possible, in a manner that does not conflict with the Constitution.**  People v Bricker **, 389 Mich 524, 528; 208 NW2d 172 (1973).** People v Carines **, 460 Mich 750, 763-765; 597 NW2d 130 (1999), has outlined our approach to these cases and holds that with**  **unpreserved, constitutional error, such as we have here, the defendant, to secure a reversal, must show that three**  **requirements are met: “1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain**  **error affected substantial rights.”** Id **. at 763. The error here meets all these elements. The jury**  **could have convicted, and most likely did convict, defendant on the basis of his act of turning in the**  **computer. Alternatively, it could have convicted on the theory the prosecutor presented that acquiring and**  **possessing the material equates with “promotion.” Finally, it could have convicted him on the basis of a single piece**  **of testimony from which one may infer that defendant**

8**distributed the material by uploading it and sending it to others through the Internet. While two of these three**  **theories were impermissible as a matter of law (having no proof of criminal intent) and the third was permissible, as**  **I have discussed, there is simply no showing, nor can there be, that the jurors all agreed on the same incident as the**  **one in which all elements of the crime were shown. This is a violation of the unanimity requirement. Moreover, it is**  **impossible to say that, had the jury been properly instructed, the outcome would be the same. This**  **constitutes plain error that affected defendant’s substantial rights and the conviction must be reversed.**  **For the reasons I have stated, I agree with Justice Kelly’s result of affirming the Court of Appeals reversal**  **of defendant’s conviction for distributing or promoting child sexually abusive material and I agree with her**  **analysis in all but part VI(B). Clifford W. Taylor** 

9**_______________________________ v**  **S T A T E O F M I C H I G A N**
**SUPREME COURT**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,** 

**No. 125483**  **RUSSELL DOUGLAS TOMBS, Defendant-Appellee.** 

**CORRIGAN, J.** (concurring in part and dissenting in part). **I agree with the majority that the distribution or promotion of child sexually abusive material must be an**  **intentional act. I respectfully dissent, however, from the majority’s application of intentionality. Under the**  **majority view, the intentionality of defendant’s act is negated because he allegedly and erroneously believed that**  **Comcast’s computer technicians would not “discover or view” the child sexually abusive material. The majority’s**  **erroneous analysis adds a heightened intent element that is not constitutionally required and is not found in the plain**  **language of the statute. I believe that the prosecution presented sufficient**  **evidence that defendant distributed child sexually abusive material. Defendant distributed child sexually abusive**  **material when he deliberately returned the company-owned computer to his employer, with full knowledge that the**  **computer contained images that he knew to be child sexually abusive material. Accordingly, I would reverse the decision**  **of the Court of A ppeals and reinstate defendant’s**  **conviction of distributing child sexually abusive material, MCL 750.145c(3).**  **While the majority properly imputes an intent to the distribution or promotion element contained in the statute,**  **it is undisputed that defendant intentionally distributed the computer to his employer with the knowledge that the**  **computer contained child sexually abusive material. Testimony adduced at trial reveals that, on the day**  **defendant resigned his employment with Comcast, defendant was informed that he would have to return the company**  **automobile and computer the same day. His supervisor, Christopher Williams, testified that he waited “45 minutes**  **to an hour” before proceeding to defendant’s residence. While en route to defendant’s residence, defendant**  **telephoned Williams and told Williams that “everything was ready.” The evidence revealed that, although given less**  **time than requested, defendant voluntarily returned the computer to Comcast.**  **Moreover, the testimony of David Joseph revealed that defendant was aware that the prurient material was on the** 

2**computer at the time the computer was returned. Joseph testified that defendant was not concerned that the**  **material would be discovered on the Comcast computer because defendant “didn’t feel as though there would be**  **anybody that would go through those individual files” because defendant believed that “the hard drive would sort**  **of just be wiped out.” Defendant further stated to Joseph that he “didn’t get the opportunity” to “expunge the**  **material that he knew was offensive.” 1**  **The evidence adduced clearly establishes that defendant deliberately returned**  **the computer to Comcast, knowing that it contained child sexually abusive material. Because the statute requires no**  **more, this should end the inquiry. The lead opinion casts the issue as whether**  **defendant’s distribution of child sexually abusive material must be an intentional act; however, the opinion ignores**  **the uncontroverted evidence that the distribution** was in fact **an intentional act. Instead, the opinion concludes**

**1 While defendant maintained to Joseph that he did not**  **have the “opportunity” to “expunge” the child pornography, the testimony in the record indicates otherwise. The**  **testimony of Sgt. Joseph Duke revealed that a “wiping program” was installed on the hard drive of defendant’s**  **computer. Duke further testified that it would have taken less than fifteen minutes to completely eradicate the child**  **pornography files from the computer.**

3**that defendant did not intentionally distribute the child sexually abusive material because “defendant neither**  **intended nor expected anyone at Comcast to** discover **or** view **the material.”** Ante **at 18. The lead opinion requires a heightened**  mens rea **element that is not supported in the language of the statute and that is not constitutionally required. The**  **opinion cites** Morissette v United States **, 2**  Staples v United
States **, 3**  **and** United States v X-Citement Video, Inc **, 4**  **in support of the claim that this additional element is**  **required. However, those cases do not hold that a defendant’s criminal intent is dependent on the particular**  **response or reaction of a third party. In each case, the Supreme Court held that the prosecution was required to**  **prove a defendant possessed criminal intent, 5**  **either with regard to the nature of the volitional act (**  Morissette **) or with regard to the nature of the prohibited goods (**  Staples

**2 342 US 246; 72 S Ct 240; 96 L Ed 288 (1952).** 

**3 511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994).** 

**4 513 US 64; 115 S Ct 464; 130 L Ed 2d 372 (1994).** 

**5 “Criminal intent” is defined as “[t]he intent to**  **commit a crime . . . .” Black’s Law Dictionary (5th ed). In this case, defendant intended to commit a crime, as defined**  **by our Legislature: he knowingly delivered a computer that he knew to contain child pornography. The only intent**  **defendant lacked in this case was the intent** to get caught **.**

4**and** X-Citement **). In** Morissette **, for example, the Court required the prosecution to prove that the defendant had**  **the intent to steal shell casings. In this case, the prosecution must prove that defendant had the general**  **intent to distribute child pornography. See** People v Nowack **, 462 Mich 392, 405; 614 NW2d 78 (2000) (requiring “'the intent to do the physical act'” for a general intent**  **crime) (citation omitted). The lead opinion transforms defendant’s admittedly volitional act into a nonvolitional**  **act on the basis of what defendant expected his employer to do.**  **Under the lead opinion, it is not enough that defendant intentionally distribute the computer, nor is it**  **enough that defendant be aware of the presence of child pornography on the computer at the time of distribution.**  **Rather, the opinion requires proof that defendant specifically intended a particular a**  **ction or response on the part of the recipient.**  **6**

**6 Those on the lead opinion believe that this specific**  **intent is required, else “[a]ll the Comcast employees” who handled the computer files could be convicted of violating**  **the statute, despite having “no criminal intent.”** Ante **at 15.**  **However, even under the standard articulated in the lead opinion,**  all **the witnesses could still be convicted of violating the statute. Each one of the Comcast employees**  **intentionally distributed the computer to his superior, (continued...)** 

5**It is unclear why the lead opinion requires that a defendant specifically intend his or her recipient to**  **“discover or view” the prurient material in order to “distribute” the material. The plain meaning of the word**  **“distribute” does not support such a requirement. The dictionary definition of “distribute” is: "1. to divide and**  **give out in shares; allot. 2. to spread throughout a space or over an area; scatter. 3.**  **to pass out or deliver:** to distribute pamphlets **. 4. to sell (merchandise) in a specified area."**  Random House Webster's College Dictionary **(2d ed, 1997). Likewise, Black’s Law Dictionary (** 6th **ed) defines “distribute” as “[t]o deal or divide out in**  **proportion or in shares.” As the Court of Appeals**

**(...continued) knowing that the computer contained child pornography, and**  **intending for the recipient to “discover or view” the material.** 

**Although not directly applicable here, the Legislature has already taken steps to prevent the prosecution of**  **people deemed to have no criminal intent. For example, MCL 752.367**  **contains several exemptions to MCL 750.145c(3). MCL 750.145c has been amended by 2002 PA 629 and 2004 PA 478.**  **The most recent amendments of MCL 750.145c provide both civil and criminal immunity from a charge of possession to**  **computer technicians acting within the scope of their employment. MCL 750.145c(4)(a) and (9). The Legislature has**  **also taken steps to provide criminal immunity to police officers acting within the scope of their employment. MCL**  **750.145c(4)(b). It is within the purview of the Legislature, not the judiciary, to extend this immunity to**  **the distribution of child pornography.**

6**correctly stated, the most applicable definition of “distribute” is to “pass out or deliver.” Nothing in either**  **the lay dictionary or the legal dictionary gives any indication that “distribution” requires the recipient to**  **view or appreciate the prurient nature of the material intentionally distributed.**  **Moreover, the lead opinion makes no effort to rationalize why defendant’s erroneous belief that no one at**  **Comcast would “discover or view” the child pornography converts defendant’s volitional act into a nonvolitional**  **act. Likewise, the opinion fails to explain why defendant’s criminal intent to distribute turns on how he**  **believed Comcast would respond after the intentionally distributed material was received. While the lead opinion**  **relies heavily on the claim that “the practice” at Comcast was to reformat the hard drive of the computer without**  **reviewing any of the files, the testimony of Christopher Williams indicated that this practice was only done “on**  **some of” the company computers. Williams testified that he inspected the contents of the computer “to see what it**  **needed” before being “issued to another technician.” Cliff Radcliff testified that the process of completely erasing**  **the contents of the hard drive was “lengthy,” and that “just cleaning out the unneeded files” shortened the** 

7**cleaning process. The record does not reveal any company “policy” requiring the automatic erasure of computer hard**  **drives without inspection. Indeed, even if such a “policy” did exist, the lead opinion fails to explain why defendant**  **enjoyed any type of expectation interest in the continuation of this so-called “practice.”**  **7 That defendant**  **believed that the material would not** be discovered **in the computer does not alter the fact that he knew that his**  **employer would in fact** receive **the material. Thus, the prosecutor presented sufficient evidence for a conviction**  **under MCL 750.145c(3). Apart from the sufficiency of the evidence, Chief**  **Justice Taylor raises in his concurrence for the first time in these proceedings the requirement of unanimity in a**  **conviction. Under this constitutional requirement, individual jurors must rely on the same**  actus reus **, despite the presence of alternative acts, when they convict a**  **defendant. See** People v Cooks **, 446 Mich 503, 510-511; 521**

**7 The lead opinion also notes that defendant had “no**  **expectation” that defendant’s employer would “search for and find” the child pornography. Yet this ignores the**  **uncontroverted evidence that defendant knowingly delivered the company computer to computer technicians, who would**  **have no difficulty locating the images “in subfolders seven directory levels down.” Indeed, one officer located the**  **materials without difficulty, despite his inexperience with computer investigations.** 

8**NW2d 275 (1994). Here, the Chief Justice’s concern is that the jury heard evidence regarding two different “acts” that**  might **have met the statute and** might **have resulted in defendant’s conviction: (1) defendant’s return of the**  **computer to his employer and (2) defendant’s participation in an Internet club that traded in child sexually abusive**  **material. While it may be possible that the jury could have**  **failed to reach unanimity here, the issue has not been raised by defendant and is not before our Court.**  **Additionally, as Chief Justice Taylor notes, this issue is unpreserved. Defendant neither requested a unanimity**  **instruction nor objected to the instructions given. An unpreserved constitutional error comes within the**  **standard of review articulated in** People v Carines **, 460 Mich 750, 763-765; 597 NW2d 130 (1999). As the Chief**  **Justice noted when he listed the requirements for showing that a plain error occurred that affected a substantial**  **right, the** defendant **bears the evidentiary burden.** Id **. at 763 (recognizing that the burden of persuasion for a**  **showing of prejudice was on the defendant). However, defendant has not established entitlement to relief under**  Carines **because, at a minimum, defendant did not identify or argue the issue. Moreover, prejudice requires showing** 

9**that the error affected the outcome. This differs from showing the**  possibility **that the jury improperly failed to meet the unanimity requirement and requires a showing that**  **the error** did **affect the outcome. Here, the jury was instructed to consider only acts**  **occurring on August 9, 2000, the day that defendant relinquished his employment. The social worker’s testimony**  **did not link defendant’s admission that he participated in an Internet club to any particular date. Also, the jury**  **was instructed to consider only the evidence presented, and that the arguments made by the attorneys were not evidence.**  **Thus, I believe that the Chief Justice has established, at best, the**  possibility **of error; however, it has not been shown that claimed error affected the outcome of the case.**  **More fundamentally, defendant must make this showing rather than rely on the Chief Justice to make it on an issue not**  **preserved below and not argued before this Court. In conclusion, the prosecutor presented sufficient**  **evidence to convict defendant of distribution of child sexually abusive material under MCL 750.145c(3). While I**  **agree that an intent requirement is properly imputed to the “distributes or promotes” element of the statute, the**  **prosecution put forward sufficient evidence to sustain defendant’s conviction. Defendant intentionally delivered** 

10**the computer to his employer, knowing that the computer contained child sexually abusive material at the time of**  **its return. The majority errs in imputing a heightened requirement that defendant intend his recipient to**  **“discover or view” the material. Because this requirement is neither constitutionally nor statutorily required, I**  **dissent from its adoption. I would reverse the decision of the Court of Appeals and reinstate defendant’s conviction.**  **Maura D. Corrigan Elizabeth A. Weaver**  **Robert P. Young, Jr.**

11